Delhi District Court
Pradip Burman vs Ito Through Sh. Gaurav Dudeja on 20 January, 2017
IN THE COURT OF SH. M.K. NAGPAL, SPECIAL JUDGE
(P.C. ACT), CBI08, CENTRAL DISTRICT
TIS HAZARI COURTS, DELHI
Pradip Burman
R/o A5/3, Vasant Vihar
New Delhi110057
...................... Petitioner/Accused
Versus
ITO through Sh. Gaurav Dudeja
Jt. Commissioner of Income Tax
Circle 46(1), New Delhi
........... Respondent/Complainant
Crl. Rev. No. : 58662/2016
CNR No. : DLCT010175912016
Date of institution : 09.12.2016
Date of reserving order : 17.01.2017
Date of pronouncement : 20.01.2017
ORDER
This revision petition is preferred by the petitioner against the order dated 10.11.2016 passed by Ld ACMM (Special Acts), Central, Delhi vide which the Ld ACMM has allowed two separate applications dated 08.09.2016 filed by the respondent against the petitioner herein in complaint case no. 525793/2016 (Old CC No. 70/4). One of these applications was for filing of some additional documents and the other application was U/s 311 Cr.P.C. r/w Section 246(6) Cr.P.C. [Section 246(6) Case No. 58662/16, Pradip Burman Vs. ITO Page No. 1 of 13 Cr.P.C. appears to have been wrongly invoked as it pertains to the stage subsequent to the framing of charge)] for leading additional evidence by way of examination of one Sh. Arindam Mishra at the precharge stage in the above said complaint case. Two similar applications of the respondent filed in another complaint case bearing no. 525792/2016 (Old CC No. 71/4) were also disposed of vide a similar order of even date passed by the Ld ACMM in the concerned case and the petitioner herein has preferred a separate revision petition no. 58663/2016 against the said order, which is also being taken up for disposal alongwith the present revision petition. Both the above criminal complaints were filed by the respondent in the course of his official duties as a public servant, being an officer of the Income Tax Department.
2. Both the above criminal complaints were filed by the respondent against the petitioner alleging that in his original Income Tax Returns filed for the assessment years 200607 and 200708 respectively, the petitioner did not disclose the details of his foreign bank account with HSBC at Zurich, Switzerland and it is alleged that when the respondent had received informations about the above said foreign account bank of the petitioner subsequently and the petitioner had disclosed certain further amounts of his income for assessment for the purposes of taxation for the above said assessment years, the respondent had then initiated the reassessment proceedings against the petitioner for these two assessment years which culminated into Case No. 58662/16, Pradip Burman Vs. ITO Page No. 2 of 13 the imposition of certain further amounts as income tax and penalties. These two criminal complaints were filed by the respondent for prosecution of the petitioner for offences U/s 276C(1), 276D and 277 of the Income Tax Act for his failure to willfully disclose the details of his above said bank account and the amounts lying deposited therein at the initial stage of filing of his Income Tax Returns for the above assessment years.
3. The background in which the above two applications were moved by the respondent herein is that the precharge evidence of the respondent in the above criminal complaints was closed on 02.07.2015 and the matter was fixed for arguments on charge for 24.07.2015. However, two applications dated 24.07.2015/20.08.2015 were subsequently filed by the respondent before the court of Ld ACMM for filing on record certain additional documents and for examination of a witness named Sh. Anurag Vardhan, who was the then Assessing Officer of the concerned ward of the Income Tax Department. The petitioner had filed his separate replies dated 01.09.2015 to these applications raising certain objections to the purposed filing of documents and examination of the above witness. Thereafter, on 11.09.2015 the respondent had filed one other application also for placing on record one certificate U/s 65B of the Evidence Act and this application of the respondent was also opposed by the petitioner vide his reply dated 01.10.2015. However, during the proceedings conducted by the Ld ACMM on 03.08.2016, the Ld counsel for the Case No. 58662/16, Pradip Burman Vs. ITO Page No. 3 of 13 respondent sought sometime to file fresh applications regarding relevancy of the above documents sought to be placed on record vide their earlier application. Thereafter, two fresh applications dated 08.09.2016 were filed by the respondent on record, which have been allowed and disposed of vide the impugned order dated 10.11.2016 of the Ld ACMM. It is necessary to mention here that in the fresh application dated 08.09.2016 for filing documents on record, apart from the documents earlier sought to be placed on record vide the previous application dated 24.07.2015/20.08.2015, the respondent also sought to place on record two additional documents, which were stated to be missing earlier and further in the other application moved U/s 311 Cr.P.C. r/w Section 246(6) Cr.P.C., in place of the earlier witness Sh. Anurag Vardhan, the respondent now sought to examine on record one Sh. Arindam Mishra, who was stated to be the present Assessing Officer of the concerned ward of Income Tax.
4. I have heard the arguments advanced by Sh.
Sanjeev Rajpal, Ld counsel for the petitioner and Sh. Brijesh Gard, Ld Spl. PP for the respondent. The entire record of the present revision petition as well as the trial court record have also been perused.
5. The main challenge by the petitioner to the impugned order of the Ld ACMM allowing the application dated 08.09.2016 of the respondent for filing certain additional Case No. 58662/16, Pradip Burman Vs. ITO Page No. 4 of 13 documents is on the ground that the documents were not filed on record earlier and further that since vide his previous order dated 03.08.2016 the Ld ACMM had permitted the respondent to file fresh applications regarding the relevancy of documents sought to be placed on record, as was requested by the respondent himself, then the respondent was bound to disclose in the fresh application dated 08.09.2016 as to how the documents sought to be filed by him on record were relevant in the present prosecution and the respondent should not have simply moved a fresh application for filing of the said documents by giving details of the nature of said documents only, without even uttering a single word with regard to the relevancy thereof. In this context, it is observed that in the first application dated 24.07.2015/20.08.2015 for filing of additional documents moved by the respondent, it was submitted that the documents sought to be filed were necessary to be taken on record as the complete chain of the informations in respect of the undisclosed foreign bank account of the accused, i.e. the petitioner herein, was not available with the respondent at the time of filing of the complaint and further that these documents were with the different wings of the Income Tax Department and the same have only been procured subsequent to filing of the complaint. It is further observed that in the subsequent application dated 08.09.2016 also similar submissions are found to have been made by the respondent regarding the non availability of the said documents with the concerned wing of the respondent and further that the same were relevant and necessary to complete Case No. 58662/16, Pradip Burman Vs. ITO Page No. 5 of 13 the chain of informations received against the petitioner in respect of the above said undeclared foreign bank account. This is besides giving details in respect of the documents proposed to be filed on record in the above said application.
6. On perusal of the impugned order of the Ld ACMM, it is found that he has already observed that the documents proposed to be filed on record were though available with some other wings of the Income Tax Department, but these were not available with the concerned wing of the department which had filed the above criminal complaints through the respondent and hence, the same could not have been filed on record earlier, alongwith the complaint itself. I see no infirmity in the observations made by the Ld ACMM in this regard and moreover most of the documents sought to be filed on record, i.e. all the documents except the documents mentioned at serial nos. 4 and 5 of the above application dated 08.09.2016, were not even in existence at the time when the above said complaints were filed by the respondent on 10.09.2014. Regarding the documents mentioned at serial nos. 4 and 5 also, there is nothing on record to show or suggest that the same were intentionally not filed by the respondent alongwith the complaint. Hence, there does not appear to be any lapse or default on the part of the respondent in not filing the said documents on record earlier alongwith with the complaint.
7. Again, simply because the relevancy of the Case No. 58662/16, Pradip Burman Vs. ITO Page No. 6 of 13 proposed documents has not been elaborated by the respondent in the said application, the same in no way can be taken to mean that the documents sought to be placed on record are not relevant in the context of the present prosecution. Nothing prevents the court from perusing the said documents and to consider its relevancy in the context of a given prosecution and then to take a call regarding bringing the same on record. As already stated above, it has been specifically mentioned in the above application moved by the respondent that the documents sought to be placed on record are relevant and necessary to complete the chain of the informations received against the accused in respect of his undisclosed foreign bank account and hence, there is nothing illegal or improper if the Ld ACMM had just considered these submissions in his impugned order and had allowed the said application. It was never necessary for the Ld ACMM to give his details reasons as to how and in what manner these documents were considered relevant for him in the above prosecution. Moreover, on a perusal of the documents sought to be placed on record, it is found by this court also that the said documents are necessary to be taken on record to complete the chain of the prosecution evidence in the above criminal complaint and these are also relevant in the above prosecution as these pertain to the admissibility and mode of proof of some other documents earlier filed on record, alongwith the original complaint, which are in the form of computerized statements pertaining to the above said foreign bank account of the Case No. 58662/16, Pradip Burman Vs. ITO Page No. 7 of 13 petitioner which are exhibited as Ex. PW1/5colly in the pre charge evidence led by the respondent. As far as the plea of Ld counsel for the petitioner regarding addition of two new/fresh documents in the second application dated 08.09.2016, i.e. one in the form of a Gazette Notification and the other being the opinion given by Ld Attorney General of India, as mentioned at serial nos. 4 and 6 of the above application dated 08.09.2016 is concerned, the same are also found relevant in context of the present prosecutions and the given context. However, how the said opinion of Ld Attorney General of India will be proved or admissible in evidence and what relevance can be attached to it will be matters of trial only when the respondent has not made any request for summoning the Ld Attorney General of India as a witness in their above complaint.
8. Further though, Ld counsel for the petitioner has also made some submissions touching upon the source of procurement of some of these documents and also the admissibility or relevance which can be given to these documents and the documents earlier filed on record and exhibited as Ex. PW1/5colly, but it is again reiterated that all these submissions with regard to authenticity and genuineness of these documents or the source of procurement thereof and their relevancy etc can only be considered at the relevant time of appreciation of the said evidence and it will only be the prerogative of the Ld trial court. The objection being raised with regard to the subsequent procurement of a certificate dated Case No. 58662/16, Pradip Burman Vs. ITO Page No. 8 of 13 14.08.2015 U/s 65B of the Evidence Act, as mentioned at serial no. 7 of the above application, with regard to the authenticity and genuineness of some of these documents being the computer print outs of certain informations received in eform from the competent authority of France, is also of no use as in view of the judgment of the Hon'ble Delhi High Court in case titled as Kundan Singh Vs. State, Crl. Appeal No. 711/2014, decided on 24.11.2015, a certificate U/s 65B of the Evidence Act should not necessarily be of the same date to which such computerized document or evidence pertains and it can be of a subsequent date and can be produced and taken on record subsequently. Therefore, this court does not find any illegality or impropriety in the impugned order of the Ld ACMM passed on the application dated 08.09.2016 of the respondent for filing on record certain additional documents. The judgment in case Motilal Vora Vs. Subramanian Swamy & Anr., Crl. M. C. No. 671/16 being relied upon by Ld counsel for the petitioner has been given in a different context and is not found applicable to the given facts and circumstances of the present case.
9. Now coming to the other application dated 08.09.2016 for examination of Sh. Arindam Mishra as a witness, in place of Sh. Anurag Vardhan as mentioned in the previous application, it is well settled that U/s 311 Cr.P.C., a criminal court has very wide powers to summon, recall or examine any person as a witness, at any stage of the enquiry, trial or other proceedings. It is also well settled that the court shall summon, Case No. 58662/16, Pradip Burman Vs. ITO Page No. 9 of 13 examine or recall and reexamine etc any such person as a witness if his evidence appears to the court to be essential to a just decision of the case. While interpreting the above provisions and making observations about the powers conferred upon a criminal court under the said provisions, the Hon'ble Supreme Court in the celebrated case of Zahira Habidullah Sheikh & Anr. Vs. State of Gujarat & Ors. : 2006 III AD (SC) 37 had made the following observations: "25. The section is manifestly in two parts.
Whereas the word used in the first para is "may", the second part uses "shall". In consequences, the first part gives purely discretionary authority to a Criminal Court and enables it at any stage of enquiry, trial or proceeding under the Code (a) to summon any one as a witness, or
(b) to examine any person present in Court, or (c) to recall and reexamine any person whose evidence has already been recorded. On the other hand, the second part is mandatory and compels the Court to take any of the aforementioned steps if the new evidence appears to it essential to the just decision of the case. This is a supplementary provision enabling, and in certain circumstances imposing on the Court the duty of examining a material witness who would not be otherwise brought before it. It is couched in the widest possible terms and calls for no limitation, either with regard to the stage at which the powers of the Court should be exercised, or with regard to the manner in which it should be exercised. It is not only the prerogative but also the plain duty of a Court to examine such of those witnesses as it considers absolutely necessary for doing justice between the State and the subject. There is a duty cast upon the Court to arrive at the truth by all lawful means and one of such means is the examination of witnesses of its own accord when for certain obvious reasons either party is not prepared to call witnesses who are known to be in a position to speak important relevant facts.
26. The object underlying Section 311 of the Code is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or Case No. 58662/16, Pradip Burman Vs. ITO Page No. 10 of 13 leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. The section is not limited only for the benefit of the accused, and it will not be an improper exercise of the powers of the court to summon a witness under the Section merely because the evidence supports the case for the prosecution and not that of the accused. The Section is a general section which applies to all proceedings, enquiries and trials under the Code and empowers Magistrate to issue summons to any witness at any stage of such proceeding, trial or enquiry. In Section 311 the significant expression that occurs is "at any stage of enquiry or trial or other proceeding under this Code". It is, however, to be borne in mind that whereas the section confers a very wide power on the Court on summoning witnesses, the discretion conferred is to be exercised judiciously, as the wider the power the greater is the necessity for application of judicial mind".
10. When the request of the respondent in summoning Sh. Arindam Mishra in place of Sh. Anurag Vardhan is considered in light of the above legal propositions, it is observed that the impugned order of the Ld ACMM also does not call for any interference on this count as what the respondent is seeking by examination of Sh. Arindam Mishra is only his replacement in place of Sh. Anurag Vardhan due to some change of circumstances after moving of the first application as Sh. Anurag Vardhan no longer remained the Assessing Officer of the said ward due to his transfer and his charge had been taken over by Sh. Arindam Mishra. Being the Assessing Officer of the concerned ward, Sh. Arindam Mishra is certainly a competent witness to depose in the matter and he is also found to have attested photocopies of the documents enclosed with the second application dated 08.09.2016, which were intended to be Case No. 58662/16, Pradip Burman Vs. ITO Page No. 11 of 13 filed on record by the respondent. It is also necessary to mention here that earlier copies of the said documents filed with the previous application dated 24.07.2015/20.08.2015 were attested by Sh. Anurag Vardhan, who was the then Assessing Officer of the relevant ward, and hence, there is nothing illegal or improper in the impugned order of the Ld ACMM if he has allowed the examination of Sh. Arindam Mishra as a witness for the respondent in the above prosecution, after the evidence of prosecution was closed by the respondent. Moreover, it is also observed that at serial no. 7 of the list of witnesses filed with the complaint itself, the respondent had already reserved his rights to examine any other officer from the department as a witness and there was also no undue delay on his part in moving of an application U/s 311 Cr.P.C. r/w Section 246(6) Cr.P.C. for leading of additional evidence at the precharge stage as the first application dated 24.07.2015/20.08.2015 under the said provisions was filed immediately after the precharge evidence of the respondent was closed on 02.07.2015. The above request of the respondent for examination of Sh. Arindam Mishra as a witness cannot also be seen as an attempt by the prosecution to fill up the lacunaes in their case as the filling up of lacunaes has to be distinguished from some mistake or inadvertence on the part of the complainant or Ld Prosecutor in charge of the case at the relevant time in not citing the name of the concerned Assessing Officer specifically as a witness in the original list of witnesses, as was also held in judgment in the case P. Chhaganlal Daga Vs. M. Sanjay Shaw - (2003) 11 Case No. 58662/16, Pradip Burman Vs. ITO Page No. 12 of 13 SCC 486 being relied upon by Ld counsel for the respondent.
11. In view of the above discussion, it is held that the impugned order dated 10.11.2016 passed by the Ld ACMM (Special Acts), Central, THC, Delhi does not suffer from any illegality and impropriety etc and hence, it is not required to be interfered with and the same is, therefore, upheld. With the result, this revision petition filed by the petitioner is being dismissed and the connected revision petition no. 58663/16 is also being dismissed. However, it is made clear that the documents brought on record vide the application allowed vide the impugned order of the Ld ACMM will be required to be proved by the respondent as per the provisions of the Evidence Act. Nothing contained herein shall also tantamount to the expression of any opinion on merits of the case.
12. Let the file of this revision petition be consigned to record room and a copy of the order, alongwith the TCR, be returned back to the court concerned for conduction of further proceedings as per law.
Announced in the open court
today, i.e. 20.01.2017 (M.K. Nagpal)
Special Judge (PC Act), CBI08
Central District, Delhi/20.01.2017
Case No. 58662/16, Pradip Burman Vs. ITO Page No. 13 of 13